The History of English Law before the Time of Edward I

In Two Volumes

Frederick Pollock

Publication Year: 2012

First published in 1895, Sir Frederick Pollock and Frederic William Maitland's legal classic The History of English Law before the Time of Edward I expanded the work of Sir Edward Coke and William Blackstone by exploring the origins of key aspects of English common law and society and with them the development of individual rights as these were gradually carved out from the authority of the Crown and the Church. Although it has been more than a century since its initial publication, Pollock and Maitland's work is still considered an accessible and useful foundational reference for scholars of medieval English law.Volume one begins with an examination of Anglo-Saxon law, goes on to consider the changes in law introduced by the Normans, then moves to the twelfth-century "Age of Glanvill," with the first great compilation of English laws and customs, followed by the thirteenth-century "Age of Bracton," author of another major treatise on the same subject. Volume two takes up different areas of English law topic by topic, or as its authors labeled it, "The Doctrines of English Law in the Early Middle Ages." They consider land tenure, marriage and wardship, fealty, the ranks of men both free and unfree, aliens, Jews, excommunicates, women, and the churches and the King, before turning to the various jurisdictions of that decentralized era.The History of English law before the Time of Edward I helps readers explore the origins of English legal exceptionalism and through the English tradition the basis of the law of America, Canada, Australia, and other nations. This work is of interest to legal scholars, historians of the Middle Ages, political scientists, political philosophers, and all those interested in Anglo-Saxon law and early law and society.Sir Frederick Pollock (1845–1937) was educated at Eton before going to Trinity College, Cambridge. He was admitted to the bar in 1871 and to the Privy Council in 1911. He taught at the University of Oxford from 1883 to 1903. Pollock wrote The Law of Torts and The Principles of Contract and served as editor of the Law Quarterly Review and editor-in-chief of the Law Reports, the volumes in which decisions of the English courts were published. Later he was made a judge of the admiralty court of the Cinque Ports.Frederic William Maitland (1850–1906) was an English jurist and historian who, like Pollock, attended Eton and then Trinity College, Cambridge. Maitland began publishing legal history in 1884 and four years later he was elected to the Downing Chair of the Laws of England. He founded the Selden Society in 1886 and served as its general editor.

Title Page, Copyright

Volume 1 Contents

Preface to the Second Edition

In this edition the first chapter, by Prof. Maitland, is new. In Book II, c. ii.
§ 12, on “Corporations and Churches” (formerly “Fictitious Persons”), and
c. iii. § 8, on “The Borough,” have been recast. There are no other important
alterations: but we have to thank our learned critics, and especially ...

Preface to the First Edition

The present work has filled much of our time and thoughts for some years.
We send it forth, however, well knowing that in many parts of our field
we have accomplished, at most, a preliminary exploration. Oftentimes our
business has been rather to quarry and hew for some builder of the future
than to leave a finished building. But we have endeavoured to make sure, ...

List of Abbreviations

List of Texts Used

Additions and Corrections

Introduction

In the First of the two Books into which our work is divided we
have endeavoured to draw a slight sketch, which becomes somewhat
fuller as time goes on, of the general outlines of that part of
English legal history which lies on the other side of the accession
of Edward I. In the Second Book we have tried to set forth at some ...

BOOK I: SKETCH OF EARLY ENGLISH LEGAL HISTORY

1. The Dark Age in Legal History

Such is the unity of all history that any one who endeavours to tell
a piece of it must feel that his first sentence tears a seamless web.
The oldest utterance of English law that has come down to us has
Greek words in it: words such as bishop, priest and deacon.1 If we
would search out the origins of Roman law, we must study Babylon ...

2. Anglo-Saxon Law

This book is concerned with Anglo-Saxon legal antiquities, but
only so far as they are connected with, and tend to throw light
upon, the subsequent history of the laws of England, and the scope
of the present chapter is limited by that purpose. Much of our information
about the Anglo-Saxon laws and customs, especially as ...

3. Norman Law

Of the law of Normandy as it was on the eve of William’s expedition,
little is known for certain. To illustrate the period which had
elapsed since the settlement of the Northmen in Neustria, there
are no written laws, no books on law and very few charters, while
the chroniclers have not much to tell about the legal structure of
the duchy, and what they tell is not always trustworthy. ...

4. England under the Norman Kings

The Norman Conquest is a catastrophe which determines the whole
future history of English law. We can make but the vaguest guesses
as to the kind of law that would have prevailed in the England of the
thirteenth century or of the nineteenth had Harold repelled the invader.
We may for example ask, but we shall hardly answer, the
question, whether the history of law in England would not have ...

5. Roman and Canon Law

In any case the restoration of order after the anarchy of Stephen’s
reign and the accession to the throne of a prince who would treat
England as the buttress of a continental empire must have induced
a critical period in the history of English law. But we must add that
in any case the middle of the twelfth century would have been critical. ...

6. The Age of Glanvill

The reign of Henry II. is of supreme importance in the history of
our law, and its importance is due to the action of the central power,
to reforms ordained by the king.1 Still it was rather as an organizer
and governor than as a legislator that Henry was active. He issued
no code; we may even doubt whether he published any one new ...

7. The Age of Bracton

The reign of Henry III. (1216–72) is in the history of our law an
age of rapid, but steady and permanent growth. At the end of that
period most of the main outlines of our medieval law have been
drawn for good and all; the subsequent centuries will be able to do
little more than to fill in the details of a scheme which is set before
them as unalterable. ...

BOOK II: THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES

1. Tenure

How best to arrange a body of medieval law for the use of modern
readers is a difficult question. Of the two obvious methods each
has its disadvantages. On the one hand, if we were to adopt the
arrangement which would be the best for a code or digest of our
modern law, though we might possibly succeed in forcing the old ...

2. The Sorts and Conditions of Men

Of the divers sorts and conditions of men our law of the thirteenth
century has much to say; there are many classes of persons which
must be regarded as legally constituted classes. Among laymen
the time has indeed already come when men of one sort, free and
lawful men (liberi et legales homines) can be treated as men of the
common, the ordinary, we may perhaps say the normal sort, while ...

3. Jurisdiction and the Communities of the Land

In an exposition of any system of law, ancient or modern, a large
space must be given to the composition and competence of courts.
In a statement of modern law, however, we should hardly place
this topic in the forefront. Courts exist for the purpose of defining
and enforcing the rules of substantive law. But when we are dealing ...

Volume II Title Page, Copyright

Volume II Contents

Additions and Corrections

4. Ownership and Possession

We have already spoken at great length of proprietary rights in
land. But as yet we have been examining them only from one point
of view. It may be called—though this distinction is one that we
make, rather than one that we fi nd made for us—the stand-point
of public law. We have been looking at the system of land tenure ...

5. Contract

The law of contract holds anything but a conspicuous place among
the institutions of English law before the Norman Conquest. In fact
it is rudimentary. Many centuries must pass away before it wins
that dominance which we at the present day concede to it. Even in
the schemes of Hale and Blackstone it appears as a mere supplement
to the law of property. The Anglo-Saxon dooms tell us but ...

6. Inheritance

If before we speak of our law of inheritance as it was in the twelfth
and thirteenth centuries, we devote some small space to the antiquities
of family law, it will be fi lled rather by warnings than by theories.
Our English documents contain little that can be brought to
bear immediately or decisively on those interesting controversies ...

7. Family Law

The nature of the ancient Germanic marriage has in our own day
been the theme of lively debates.1 The want of any first-rate evidence
as to what went on in the days of heathenry leaves a large
field open for the construction of ingenious theories. We cannot
find any fixed starting point for our speculations, so completely ...

8. Crime and Tort

On no other part of our law did the twelfth century stamp a more
permanent impress of its heavy hand than on that which was to be
the criminal law of after days. The changes that it made will at first
sight seem to us immeasurable. At the end of the period we already
see the broad outlines which will be visible throughout the coming ...

9. Procedure

After all that has hitherto been said, and now that we are nearing
the end of our long course, we have yet to speak of the most distinctively
English trait of our medieval law, its “formulary system”
of actions. We call it distinctively English; but it is also in a certain
sense very Roman. While the other nations of western Europe were ...

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